The Senate consisted of 41 members who were elected to represent 40 (largely homogenous) Districts and Nairobi, to which the country was divided.

Introduction

The First Senate in independent Kenya was provided for in the 1963 Independence Constitution (officially referred to as Kenya Subsidiary Legislation, 1963). This First Senate was established through strong lobbying by the political party KADU, mainly to ensure a safeguard for rights of the minority groups in Kenya. "The idea of a second chamber for Kenya was originally proposed by the Kenya African Democratic Union (hereafter called KADU) as part of its plan to provide protection for the smaller tribes, which that party represented, against the danger of domination by the larger and more advanced Kikuyu and Luo groups, which supported the Kenya African National Union (hereafter called KANU).

KADU desired a federal system in which considerable power would be allocated to regional governments. An upper house was considered necessary to safeguard the autonomy of the regions and to assure sufficient representation of minority interests at the center, for it was recognized that a unicameral legislature elected on the basis of "oneman, one-vote" might very well be completely controlled by KANU which favored a greater centralization of power. Mr. Ronald Ngala, leader of KADU, said upon his arrival in London for the 1962 constitutional conference, "We believe that a two-Chamber Parliament with a Senate especially charged with preserving the rights of the regions is the only way to ensure the continuing liberty of the individual."(Proctor, 1965).

Of note, a slightly different version of these events attributes the push for regionalism rather as a creation of the colonial settlers and other groups, and not KADU. For example, Reginald Oduor in quoting Odinga (1967) writes that, "....... majimboism was originally not KADU’s idea. Rather, it was hatched by the European settlers, keen to preserve their autonomy in the inevitable eventuality of an independent Kenya. KADU only adopted the idea of majimboism in 1961, when it became clear that together with its allies, Michael Blundel’s New Kenya Party (NKP) and the Kenya Indian Congress (KIC), which then controlled the transition government, they were unlikely to win the 1963 election and assume control of an independent unitary state. The settlers convinced the KADU leaders that majimboism would ensure that Kenyatta would never be Prime Minister, for there would be no need for a head of state or prime minister, but a loose system of regional councils with rotating chairmen" (Odinga 1967, 226-227).

To Ngala and others in KADU, this senate was set up to give a voice to districts that perhaps were not active participants in the independence movement. Being a creation of the Lancaster House conferences, the senate was a part-result of the political negotiations and compromises that were tabled by these minority interests. Colonial settlers in particular, had to be assuaged that their land would not be retaken by government upon independence. Proctor adds that, "Bicameralism was also supported by Asian merchants and European settlers in Kenya as a means of providing some checks against hasty, ill-advised, or discriminatory action." (Proctor, 1965).

The various Regional Assemblies at the time also believed that a Senate would serve to ensure they remained autonomous in law and practise. "Secondly, the Senate was established to safeguard the autonomy of the regions and protect the interests of the peoples of the various regions. The Senate as understood by KADU as the proponents of dual chambers was not only to represent the interests of the various districts into which the country was divided, but also to protect the regional regional governments popularly known as 'Majimbo'."(Kirui and Murkomen, 2010).

Authority

The First Senate, anchored in the then independence Constitution, formed one of the two Houses of Parliament. Excerpts from Chapter 4 section 34 of the Kenya Subsidiary Legislation, 1963, as the independence constitution was officially known:

34. (2) The National Assembly shall comprise 2 Houses, that is to say, a Senate and a House of Representatives.

As a house of parliament the First Senate had powers to originate non-money Bills and to make laws while working together with the lower House of Representatives:

59. (1) The power of Parliament to make laws shall be exercisable by Bills passed by both Houses of the National Assembly ....... and assented to by Her Majesty of by the Governor-General on behalf of Her Majesty.

(2) A Bill other than a money Bill may originate in either House of the National Assembly but a money Bill may originate only in the House of Representatives.

KADU's wishes for a Senate equal in power to the House of representatives were clearly not granted. Money Bills were a no-go zone for the Senators:

60. The Senate shall not: (a) proceed upon any Bill, other than a Bill sent from the House of Representatives, that in the opinion of the person presiding, makes provision for any of the following purposes: (i) for the imposition, repeal or alteration of taxation; (ii) for the imposition of any charge upon the consolidated Fund or any other fund of the Government of Kenya; (iii) for the payment, issue or withdrawal from the Consolidated Fund or any other fund of the Government of Kenya of any monies not charged thereon or any alteration in the amount of such a payment, issue or withdrawal; or (iv) for the composition or remission of any debt-due to the Government of Kenya; (b) proceed upon any amendment to any Bill that, in the opinion of the person presiding, makes provision for any of those purposes; or (c) proceed upon any motion (including any amendment to a motion) the effect of which , in the opinion of the person presiding, would be to make provisions for any of those purposes.

Roles and Functions

As a House of Parliament, the Senate was expected to participate in making laws. Part 4 - Legislative Powers, excerpts:

66. (1) Subject to the provisions of this Constitution, Parliament shall have power to make laws for the peace, order and good government of Kenya or any part thereof.

Crucially, despite its limited authority and clout, the Senate had to be consulted before a state of emergency or war, or an extension of the same, could be declared:

69. (4) ....... no proclamation of emergency shall be made except with the prior authority of a resolution of either House ....... supported by the votes of 65 per cent of all the members of that House, .......

(5) ....... but every proclamation so made shall lapse at the expiry of seven days, commencing with the day on which it was made, unless it has in the meantime been approved by a resolution of each House of the National Assembly supported by the vote of 65 per cent of all the members of that House.

And should the House of Representatives be dissolved, the Senate then becomes the sole authority to approve such a state of emergency:

(6) A proclamation of emergency may be made ....... at any time when Parliament stands dissolved but ....... shall lapse at the expiration of seven days ....... unless it has been approved by a resolution of the Senate supported by the vote of 65 per cent of all the Senators.

An 'out of line' regional government could expect the lawful support of the Senate especially if it felt its actions were unfairly adjudged by the lower house seeking to suspend its government purely for political reasons:

70. (1) ....... there is in force a resolution of each House of the National Assembly supported by the votes of 65 per cent of all the members, of that House declaring that the executive authority of a Region is being exercised in contravention of ....... this Constitution, Parliament may make laws for that Region ....... .

As we have seen, this First Senate was established through strong lobbying by the political party KADU, mainly to ensure a safeguard for rights of the minority groups in Kenya. Proctor explains some of the specifics: "The idea of a second chamber for Kenya was originally proposed by the Kenya African Democratic Union (hereafter called KADU) as part of its plan to provide protection for the smaller tribes, which that party represented, against the danger of domination by the larger and more advanced Kikuyu and Luo groups, which supported the Kenya African National Union (hereafter called KANU). KADU desired a federal system in which considerable power would be allocated to regional governments. An upper house was considered necessary to safeguard the autonomy of the regions and to assure sufficient representation of minority interests at the center, for it was recognized that a unicameral legislature elected on the basis of "one man, one vote" might very well be completely controlled by KANU which favored a greater centralization of power. Mr. Ronald Ngala, leader of KADU, said upon his arrival in London for the 1962 constitutional conference, "We believe that a two-Chamber Parliament with a Senate especially charged with preserving the rights of the regions is the only way to ensure the continuing liberty of the individual." (Proctor, 1965).

Clearly, and sadly, the present ethnic divisions in politics in Kenya witnessed today existed way back before independence; instigated and abetted no-less than by the colonial masters, leading to the formula for delimitation of District boundaries and hence Senate representation being based purely on ethnicity. These District boundaries had been drawn by the Regional Boundaries Commission for the 1962 Census and were considered expedient to the political considerations of the day by the majority of the players: "In 1962, immediately preceding independence, the Regional Boundaries Commission divided Kenya on the basis of either ethnic homogeneity, i.e. one tribe per district, or compatibility, i.e. more than one tribe per district or province where they were happy to coexist." (Roddy Fox, 1996).

KANU meanwhile, did not see the need for a senate. However, a compromise was arrived at, that allowed for a weaker upper house, but provided for a Senator from every District. J H Proctor continues, "........ partly to ensure proper representation of geographical views and interests, partly to act as a revising and reforming house, and also, possibly most important, to act as fundamental protector of individual rights and liberties ....... and to assure, particular influence to local or special interests ....... Elections by districts would ....... provide a much more effective safeguard for minorities and individuals."

In a nutshell, the Senate stood as the protector of group regional rights and individual liberties of minorities, against the dominance by the larger tribes who under KANU, could easily have swamped their interests.

Composition and Tenure

The Senate drew its membership from elected representatives of each of 40 Districts and Nairobi area, that had been curved out by the Royal Boundaries Commission:

36. (1) Kenya shall be divided into 40 Districts and the Nairobi Area; and each District and the Nairobi Area shall elect one Senator ....... .

The First Senate was in all intents and purposes, no more than a House of tribal representatives. According to Proctor, these 40 Districts were curved and defined in such a manner as to make.......the senate constituencies more homogeneous tribally and thus provide more nearly—although still not perfectly—for the representation of tribes as such in the upper chamber. In thirty-five of the forty-one constituencies, one tribe constituted an absolute majority of the population and in seventeen districts over 90 per cent were of the same tribe!" (Proctor, 1965).

Interestingly, KADU's proposal at the Lancaster House conferences had been for a senate that would be equal in power to the lower house, consisting of 5 members drawn from every one of the seven Regional Assembly. KADU further wanted an arrangement in which these senators would be chosen through nomination by their respective Regional Assemblies and not through universal suffrage. KADU's wish was however no granted and so the Senators had to secure their seats via elections in 1963:

35. The Senate shall consist of 41 Senators, elected in accordance with the provisions of section 36 of this Constitution.

The Senate was led by an elected Speaker and Deputy-Speaker:

43. (1) There shall be a Speaker of the Senate who shall be elected by the Senate from among the persons who are Senators or are qualified to be elected as such.

44. (1) There shall be a Deputy Speaker of the Senate who shall be elected by the Senate from among Senators other than Ministers and Parliamentary Secretaries.

Senators were to serve for a six-year term, meaning that the election of members to the Senate ran on a different election calendar from that of the members to the House of Representatives:

42. (3) A Senator shall vacate his seat at the expiration of six years beginning with the date of return of the first writ returned at the general election of Senators at which he was elected, and his term of office shall not be affected by the dissolution of Parliament: ...... .

The same is echoed by Proctor, "It was also agreed readily that a Senator's term should be fixed for six years and that the life of the Senate would not be affected by the dissolution of the House of Representatives or the fall of a Government. This provision meant, as Mr. Mboya pointed out later, that "changes in the mood of the electorate will not be reflected so quickly in the composition of the Senateas in the composition of the House of Representatives" and was intended toenable Senators to "achieve a degree of detachment from the more violentfluctuations of political mood and party politics." The chances of fluctuation were further reduced by the provision that the expiration of the members' terms would be staggered so that no more than one-third of the seats would fall vacant at any one time." (Proctor, 1965).

Naturally, a member elected to fill a vacancy (in a by-election) had to vacate their seat at the next election of Senators:

42. ....... Provided that: (a) a Senator who was elected to replace a Senator who has died or ceased to be a Senator before the expiration of his term shall vacate his seat at the expiration of the remainder of that term; and (b) a Senator who was elected to fill a vacancy that was left unfilled at a general election shall vacate his seat on the date on which he would have vacated it if he had been elected at that general election.

This representation formula of a Senator per every District, soon became a point of controversy since sparsely populated Districts and language people (tribes) were over-represented in the upper house. Furthermore, the idea of Districts denied white settlers and Asians any direct representation in the Senate. KANU was not unduly concerned by this (especially in regard to over-representation) because the powers of the Senate were in any event, significantly diminished. However, looking at the numbers, J H Procter provides an example that demonstrated the lopsided nature of representation in the Senate: "In the twenty-eight contested Senate constituencies, KANU polled a total of 1,028,906 votes and won thirteen seats, while KADU polled 474,933 votes and won twelve seats. The population of the five districts in which KANU candidates were unopposed was 880,000 while the population of the four districts which returned KADU candidates without contest was 351,800. Thus it could be said that on the average each KANU Senator had received the support of approximately twice as many voters as had each KADU Senator" (Proctor, 1965).

Members of the First Senate of Kenya

Speaker – Hon. Timothy Chitasi Muinga Chokwe

Table 1.1 Senators from Central Region

Year

District

Representative

Party

1

1963

Fort Hall*

Senator Tadeo Mwaura

2

1963

Kiambu

Senator J. M. Koinange

KANU

3

1963

Kirinyaga

Senator R. N. Gikunju

4

1963

Nyandarua

Senator Gideon G. Kago

KANU

5

1963

Nyeri

*Senator James P. Mathenge*

KANU

6

1963

Thika

Senator J. M. Njonjo

*Fort Hall was the former name for Murang'a. *Senator JP Mathenge was the deputy Chief Whip on the government side. Who were the chief whips?

Table 1.2 Senators from Coast Region

Year

District

Representative

Party

1

1963

Kilifi

Senator H. J. Malingi

2

1963

Kwale

Senator Rocky Mchinga

3

1963

Lamu

Senator Msallam M. Ali

4

1963

Mombasa

Senator S. R. D. Msechu

5

1963

Taita

Senator W. K. Mengo

6

1963

Tana River

Senator Martin T. Jilo

Table 1.3 Senators from Eastern Region

Year

District

Representative

Party

1

1963

Embu

Senator S. R. Nyaga

2

1963

Isiolo

Senator Mkubito Lawi

3

1963

Kitui

Senator Permenas Nzilu Munyasia

4

1963

Machakos

Senator J. M. Nthula

KANU

5

1963

Marsabit

Senator S. A. Galgallo

6

1963

Meru

Senator Julius Muthamia

Table 1.4 Senator for Nairobi Area

Year

District

Representative

Party

1

1963

Nairobi Extra-Regional Area

Senator C. K. Lubembe

KANU

Table 1.5 Senators for North-Eastern Region

Year

District

Representative

Party

1

1963

Garissa*

Senator Abdi Haji Ahmed

2

1963

Mandera*

Senator Mohamed Nur Hussein

3

1963

Wajir*

Senator Noor Adhan Hassan

Table 1.6 Senators for Nyanza Region

Year

District

Representative

Party

1

1963

Central Nyanza

Senator D. O. Makasembo

2

1963

Kisii

*Senator J. K. Kebaso*

KANU

3

1963

South Nyanza

Senator S. F. Mbeo-Onyango

KANU

*Senator Kebaso was the Deputy Speaker.

Table 1.7 Senators for Rift-Valley Region

Year

District

Representative

Party

1

1963

Baringo

Senator William Kiptui Rotich

2

1963

Elgeyo Marakwet

Senator J. K. Arap Chemjor

3

1963

Kajiado

Senator G. K. Ole Kipury

4

1963

Kericho

Senator James K Arap Soi

5

1963

Laikipia

Senator Tom Kariuki Gichohi

6

1963

Nakuru

Senator W. Sijeyo

7

1963

Nandi

Senator G. N. Kalya

8

1963

Narok

Senator P. T. Ole Lemein

9

1963

Samburu

Senator J. Lenayiarra Kanite

KADU

10

1963

Trans Nzoia

Senator William Wamalwa

11

1963

Turkana

Senator J. H. Robaro

12

1963

Uasin Gishu

Senator E. M. Daliti

13

1963

West Pokot

Senator E. Porriot Kassachon

Table 1.8 Senators for Western Region

Year

District

Representative

Party

1

1963

Bungoma

Senator Nathan W. Munoko

KADU

2

1963

Busia

Senator J. J. W. Machio

3

1963

Kakamega

Senator A. R. Tsalwa

KADU

Other Members of the First Senate: Clerk to the Senate – L. J. Ngugi, Clerk Assistants – C. R. Coelho and J. G. Kimani, Hansard Editor - W.W.W. Awori. who else served in this senate??

This Senate first met on June 7, 1963. However, its very survival remained a matter of discussion and considerable uncertainty right from its first sitting. For instance, on July 9 the same year, Senator William Wamalwa of Trans Nzoia "....... raised the suspicion in the Senate that some cabinet ministers had "a negative attitude towards this House (Senate)" and reported that a rumour was already circulating "that the Senate may be washed out." (Proctor). By March 25 the following year the leader of government business J P Mathenge finally acknowledged Senator Wamalwa's assertions to the effect that there had been widespread speculation as to whether the Senate should be "scrapped."

*Committees

* reliable data on the first senate is not readily available......but we are doing our level best to get it......

Bills & Legislation

The First Senate served for 4 years during which it operated with limited powers and was severely overshadowed by the lower house. For instance, it could neither veto bills from the lower house nor originate 'financial' bills. A financial bill was one that touched on taxation, the Consolidated Fund, or government debt, etc. Excerpts from the 1963 Constitution:

59. (2) A Bill other than a money Bill may originate in either House of the National Assembly but a money Bill may originate only in the House of Representative.

60. The Senate shall not: (a) proceed upon any Bill, other than a Bill sent from the House of Representatives, that in the opinion of the person presiding, makes provision of the following purposes: i). for the imposition, repeal or alteration of taxation; ii). for the imposition of any change upon the Consolidated Fund or any other fund of the Government of Kenya; iii). for the payment, issue or withdrawal from the Consolidated Fund or any other fund of the Government of Kenya of any moneys not charged thereon or any alteration in the amount of such a payment, issue or withdrawal; or iv). for the composition or remission of any debt-due to the Government of Kenya; (b) proceed upon any amendment to any Bill that, in the opinion of the person presiding, makes provision for any of those purposes; or (c) proceed upon any motion (including any amendments to a motion) the effect of which, in the opinion of the person presiding, would be to make provision for any of the those purposes.

This First Senate could not dilly-dally on a money Bill sent to it from the House of Representatives. It had to act on it and return it within 30 days: Excerpts:

61. (1) When a Bill that is passed by the House of Representatives is certified by the Speaker of that House.....as a money Bill and having been sent to the Senate at least one month before the end of the session, is not passed by the Senate without amendment within one month after it is so sent, the Bill shall, ........ be presented to the Governor-General for assent.

Often times, a feeling of impotence engulfed the First Senate whenever Bills (and especially money Bills) were sent to it for debate. It was looked down upon by the lower house, so much so, that there was a debate to abolish it hardly a year into its existence. The Senators resisted such moves and continued to frustrate efforts of the ruling party KANU, to change the constitution, as such changes required majority assents from the Senate. The President hardly appointed any members from the Senate as Ministers. Thus debates in the senate did not receive the requisite attention from the Cabinet.

The Senate for its part, failed to do itself any favours given the lack of quality in debate that often accompanied its deliberations. It received scant media coverage and faced undue delays in the printing of its Hansard reports.

"The educational effect of the Senate was also limited by the fact that the standard of its debates was not of a very high order. It was a rather boisterous and unruly house. Those speaking were frequently interrupted by shouts and fraudulent points of order which made it quite difficult for them to develop their arguments thoughtfully and for the debate to proceedsystematically. The presiding officer cautioned Senators repeatedly to comply with the rules of order and warned them against undignified behaviour which would bring the House into disrepute. On one occasion he expelled an intoxicated member for fourteen sitting days. There were many irrelevancies and much repetition in Senators' speeches, and their language was often quite emotional and intemperate. It was also often evident that members had not done their "homework."The quality of the Senate's deliberations was such, indeed, that the Leader of Government Business was prompted to warn its members that their conduct was weakening the case for retaining bicameralism. He said: '........ I take this opportunity to appeal to hon. Members to try and behave with the dignity that is required of this House as the Senate. This is the Senior House, and it is supposed to consist of the elder statesmen. But at the moment there is a tendency for many people—and I have had this from other Members of the House of Representatives, who have made derogatory remarks on our procedure—to realize that a higher standard of debate and more serious contributions to the Government of the country, will make this House a considered one, and the more right we will have to remain if we are going to remain.'" (Proctor, 1965).

Despite the low-key value of the role of the Senate in the eyes of the public and even less in those of the lower house, it did distinguish itself as the Chamber that was consistent in highlighting issues of minority rights as well as local (regional) interests. At least at the Senate there was adequate room for the small tribes to be heard and to be represented as a block. However, being made up almost entirely of KANU and KADU members, the Senate regularly shot itself in the foot whenever it called a vote on a motion, because often-times Senators voted along party lines.

The Constitution of Kenya Act Amendment Act No 19 of 1966 abolished the Senate and provided for the Senators to move into the House of Representatives as MPs. Writing in the Kenya Parliament Magazine of April 2011, Jackline W. Kamathi and Linda Kiriinya describe the process of the abolition of the First Senate:

"The amendment to abolish the Upper House was quite unique. This amendment was first discussed in the Senate then brought to the House of Representatives. The Bill was introduced to the House by the then Attorney General, Charles Njonjo. In presenting theBill, he argued that one House would work better as opposed to two. Those in favour of the abolition of the Senate argued that the idea of a bicameral system was foreign and imposedby the colonialist. This view was propagated by the Late Tom Mboya. Also, the role of the Senate had already been watered down and the merging could save on time in the passing of Bills. However, the strongest argument was that merging both Houses would unite Kenya.Since Parliament was a representative assembly, by having one chamber the legislature would serve as an example to all Kenyans. Mzee Jomo Kenyatta argued that traditional Kenyan society rejected the notion of dual executive authority. He claimed that Kenyans were more apt to support strong centralized leadership, which emulated tribal structure. There were also claims that it was too expensive to maintain two legislatures. On the other hand, those who did not appreciate the idea of a merged House claimed that it would easily lead to dictatorship as too much power would be concentrated on one person. This argument was largely championed by the Late Jaramogi Oginga Odinga. The amendment was passed by Parliament establishing the presidency and abolishing the Senate. Kenyatta became the President, and Parliament the sole legislative body." (Kenya Parliament Magazine of April 2011).

Even after it was abolished and its outgoing members were being amalgamated into the National Assembly, there was a feeling (fueled no less, by KANU which was all along opposed to a Senate), that the new MPs were being imposed on the electorate. However despite overwhelming odds, this First Senate did make noteworthy contributions in the successful passing of various legislations:

*Notable Achievements of the First Senate

Act/Amendment

Details of the Act/Amendment of the Constitution

1.

2.

3.

4.

5.

6.

* reliable data on the first senate is not readily available......but we are doing our level best to get it......

The First Senate was eventually abolished after 1966 and Kenya reverted to a unicameral system of parliament. At that time additional constituencies were created and all the Senators were amalgamated to the lower house as Members of Parliament.

Hansard & Records

These records are currently in non-digitised format. We will make them available to you with time .......

Ustawi Team

References:

1. Proctor J H (1965), Duke University. The Role of the Senate in the Kenya Political System, Institute for Development Studies, University College Nairobi.

2. Oduor, R (2011). "Ethnic Minorities in Kenya's Emerging Democracy: Philosophical Foundations of their Liberties and Limits", a thesis submitted in fulfillment of the requirement for the degree of Doctor of Philosophy at the University of Nairobi.

3. arap Kirui K and Murkomen K, (2011). The Legislature: Bi-cameralism under the new Constitution. Constitution Working Paper Series No. 8; Society for International Development (SID).